Friday, April 8, 2016

New Statewide Financial Affidavit for family law cases approved by the Illinois Supreme Court

As part of the new divorce statute that became effective in 2016, the Supreme Court developed a new Financial Affidavit to be used in all family law cases, specifically when there are motions filed for temporary child support or temporary spousal maintenance. I'm quite familiar with the new form because I was one of three members of the Illinois Supreme Court’s Commission on Access to Justice, Subcommittee on Standardized Forms responsible for coming up with the initial drafts of the form. The form went through public comment and then approval by the Supreme Court.

Here is a link to the new form that becomes effective as of April 7, 2016.

   
Here are some other general instructions on filling out this Financial Affidavit form:
A.    If you are familiar with using PDFs, you should fill out the Affidavit on your computer, save it, print it, sign it and then send back the completed PDF. This is the preferred method because: 1) you can easily edit a saved PDF without redoing the whole Affidavit and 2) it automatically calculates most of the math.
B.    You can also just print it out, write in your answers, sign in the places indicated. The Affidavit may need to be revised throughout the case as conditions change.
If you are having trouble downloading the form, you will need to have Adobe Reader on your computer. That software is available at: https://get.adobe.com/reader/
Below are some general guidelines that are IN ADDITION to the instruction that go with the form. Those instructions override any suggestions here. Everyone’s situation is different and judges are different in how they handle their cases so this is not a substitute for a consultation with an attorney so that the form is properly filled out. 
1)     DUE DATE: The sooner this is completed, the better. However, it is absolutely required at the time you file a motion for temporary support or temporary maintenance/alimony. The party responding to the motion must also complete a Financial Affidavit. Also, both parties must include supporting documents such as paystubs and tax returns when completing it.
2)     Overview: While the Affidavit is lengthy, many of the questions may not be applicable to your case and it may be appropriate to just answer “none” or “N/A” (not applicable). Also note that there are four primary parts to this document:
a.      General Information (pages 1-2)
b.     Monthly Income and Deduction (pages 2-3)
c.      Monthly Living Expense Summary (pages 4-6)
d.     Assets and Liabilities (pages 7-9)
3)     Purpose of document. The purpose of filling out this form is to give the judge in your case a quick summary of your situation, assets, debts, income and expenses. You should spend considerable time properly preparing this as you can be punished for knowingly misleading the judge with the information. Below are some general ideas to help but again, none of this is a substitute for the direct assistance of an attorney.
4)     Assets and Debts not in your name or not under your control:
a.      Pre-divorce cases - You should list every asset or debt you have any knowledge of regardless of whose name it is in, who’s paying it or whether it is even getting paid right now. As far as what assets to list, all accounts get listed and personal property can be detailed on the “Additional Information” sheet.;
b.     Post-divorce cases or Paternity Cases – You should list just your own assets and liabilities.
5)     Averaging of income and expenses. Since the document calls for your repeating and regular monthly income and expenses, you will have to calculate what those are even if some are paid weekly or biweekly or if you have expenses that are paid quarterly (such as car insurance) or yearly (such as children's school fees). For those items not received or paid on a monthly basis, try to reasonably calculate your yearly amounts for that item and then divide by 12. If you are paid every two weeks, you would need to multiply your gross pay every two weeks by 26 (i.e. 26 pay periods per year) and then divide by 12 to get an average monthly gross income.
6)     Relationship between income and expenses. Often times clients have a tendency or inclination to overstate expenses and sometimes even understate income. You may lose credibility with the judge if you show that you have expenses of $5,000 a month but income of $1,000 a month. There are times where this is the fact and it is appropriate to put it down (like where your credit cards are meeting the difference or you have help from family), but these are the areas where the assistance of attorney is required to handle this properly before the document is submitted to the court.
7)     Access to records. Sometimes you may not have immediate access to all the records necessary to complete this form either because they don't exist or the other party is the only person with access. If you know an expense, asset or debt exists, use the best information you have available and include it.
8)     Sharing of expenses. Sometimes there are situations where you either have a roommate or someone else you share expenses with or live with family. In these instances, you should indicate how you are actually contributing. Again this is a situation to discuss with an attorney of it is not clear what to do or how to respond.
9)     Documents submitted with the Financial Disclosure Affidavit: Under the rule, you are to submit a copy of supporting documents that in most instances should include your most recent paystub and a copy of last year’s income tax return.
10)  Sign and date the Affidavit: Once you have completed the entire Affidavit you will need to sign and date it as well as provide a copy to the other party or their attorney if they have one. You should also bring extra copies to court for the judge.
Keep in mind that whatever information is put down is made under oath and as long as you use your best efforts to fully complete it and can explain and justify your answers, you should be okay.
Sometimes it is also helpful to complete one as a draft with all your notes, questions, documents and then for a final version to be completed after you have had a discussion with an attorney.